Employment law – Dismissal and disciplinary process
Employers will need to follow a correct dismissal and disciplinary process if they want to avoid a claim for unfair dismissal. Minor conduct issues can often be resolved informally between you and your employer, often by way of a discussion. A note of any such informal discussions may be placed on your personnel file, however this will usually be ignored for the purposes of any future disciplinary hearings- even if an informal verbal warning is given.
If the allegations against you are more serious, your employer may decide to take a more formal route. The disciplinary and dismissal process that your employer should follow is largely governed by the ACAS Code of Practice (“the Code”). Employers and employees alike are expected to follow the Code.
1. Key points of the code
The Code is not legally binding and a failure to follow it will not result in an automatic penalty for the employer or employee. However employment tribunals will take the Code into account where appropriate, including in relation to any damages awarded.
A failure by the employer to follow the code without justification can amount to a finding of unfair dismissal and allow tribunals to adjust an increase in any award of damages to the employees by up to 25%. Similarly, if an employee breaches the Code, for say not lodging a grievance before resigning and claiming constructive dismissal, any damages award to the employee may be adjusted downwards by 25%.
The code does not apply to redundancy dismissals and the non-renewal of fixed term contracts, but can apply to performance disciplinary and dismissals unless your employer has a separate process for this
2. General guidelines
Whenever a disciplinary process is being followed the Code makes clear that it is important to deal with issues fairly. In particular:
- Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
- Employers and employees should act consistently.
- Employers should carry out any necessary investigations, to establish the facts of the case.
- Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
- Employers should allow employees to be accompanied at a formal disciplinary meeting.
- Employers should allow an employee to appeal against any formal decision made.
3. Disciplinary procedures
The Code sets out procedures the employer should follow when handling a disciplinary:-
Employers should carry out an investigation of potential disciplinary matters without unreasonable delay to establish the facts of the case. Different people should carry out the investigation and the disciplinary hearing.The amount of investigation required will depend on the nature of the allegations and will vary from case to case. It may involve interviewing and taking statements from you and any witnesses, and/or reviewing relevant documents. If it is necessary to have a meeting with you within the investigation process, such a meeting should not form part of the disciplinary process.
If there is an investigatory meeting this should not by itself result in any disciplinary action. Although there is no statutory right to be accompanied by a trade union official or work colleague at a formal investigatory meeting, this may be allowed under your employer’s own disciplinary process.
Informing the employee
If there is a disciplinary case to answer the employee should be notified in writing with sufficient information of the problem and be given details of the meeting time and venue. The disciplinary meeting should be held without unreasonable delay and allow the employee reasonable time to prepare their case.
The disciplinary meeting and right to be accompanied
An employee has a general right to be accompanied at the disciplinary meeting. The law provides that after a reasonable request, a worker must be allowed to be accompanied at a hearing by a single companion, chosen by him or her from three categories of people. These categories are:-
- a trade union official employed by the union;
- a trade union official who is certified in writing by the union as having the necessary experience or training to act as a companion;
- or another of the employer’s workers.
If your chosen colleague is not available at the time proposed for the hearing by the employer, and you propose an alternative time which satisfies subsection which is reasonable, and falls before the end of the period of five working days beginning with the first working day after the day proposed by the employer, then your employer should postpone the hearing until this time.
At the meeting, your employer should explain the reason for the disciplinary and go through the evidence. You should be allowed to answer any allegations, ask questions, present evidence and call relevant witnesses. You should give your employer advanced notice of an intention to call witnesses.
After the meeting the Employer should inform the employee in writing if disciplinary action is to be taken. For misconduct or poor performance reasons, employers are expected to give a first and then 2nd final written warning, otherwise the dismissal could be unfair (for example in the case of gross misconduct, then summary dismissal without any warnings or notice may be appropriate).
A decision to dismiss should only be taken by a manager who has the authority to do so.
The ACAS Code recommends that employees should be informed how long a warning will remain current, and in the case of a final warning, the consequences of further misconduct within that period. ACAS suggests that first written warnings should remain active for 6 months, and final written warnings for 12 months.
What if you are unable to attend the meeting?
Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, an employer should make a decision on the evidence available.
Note: The Court of Appeal has ruled that an employer should have regard to the duty to make reasonable adjustments when issuing disciplinary warnings for sickness absence where there is a disability. The Court has said that an absence management policy, under which all employees (both disabled and non-disabled) are treated equally is capable of placing a disabled employee at a substantial disadvantage.
This means an employer may have to extend the point at which disciplinary action can be taken under its attendance management policy, and have regard to periods of sickness absence.
Employees have the right to appeal against a disciplinary action in writing. Appeals should be heard without unreasonable delay, and should be dealt with impartially by a manager who has not previously been involved in the matter. Employees should be informed in writing of the appeal hearing result as soon as possible.
What if there is a delays by your employer in dealing with the disciplinary process?
The disciplinary process should be dealt with in a matter of weeks, and unexplained delays in the proceedings will always be frowned upon by tribunals. However, it is recognised that more complex or difficult cases (for example, where fraud or a criminal offence is alleged) will inevitably take longer.
Can the same person investigate the disciplinary, whilst also carrying out the hearing and appeal?
A common failing found in tribunal claims is that the same individual is in charge of the disciplinary process from start to finish. Ideally, different people should carry out the investigation, disciplinary hearing and appeal stage, although tribunals do recognise that this will not always be practicable, particularly for small employers.
Overlapping of a grievance and disciplinary process
Where an employee raises a grievance during a disciplinary process, the process may be temporarily suspended by your employer in order to deal with the grievance. Where the grievance and disciplinary cases are related, however, it may be appropriate to deal with both issues concurrently, and many employers opt for this to save time.
A dismissal will not necessarily be unfair if an employer does not put disciplinary proceedings on hold to deal with a grievance. Each case will depend on its particular facts and an employer will have to show that not suspending the disciplinary process to investigate a grievance was a fair and reasonable thing to do.
If your employer has not followed a correct process, you may have a claim for unfair dismissal.
Is it better to resign before you are pushed if you are facing disciplinary proceedings?
Yes, in some circumstances it may be best to resign first. Please click here to access the gross misconduct page where this is issue is discussed.